State v. Lynds

605 A.2d 501, 158 Vt. 37, 1991 Vt. LEXIS 235
Supreme Court of Vermont·Decided October 25, 1991·No. 88-597·Published·Cited by 28 cases

Opinions

Dooley, J.

In this appeal from a conviction for séxual assault, we hold that the trial court erred in ruling that the prosecution’s expert witness was unavailable under V.R.Cr.P. 15 and in allowing her deposition to be read to the jury. Since the error was not harmless, we reverse and remand for a new trial. Ac[40] cordingly, we do not reach two other arguments raised by defendant.

In February 1988, defendant’s nineteen-year-old daughter complained that she had been repeatedly sexually abused by defendant. She alleged that the abuse began when she was thirteen and continued for more than three years, with the last incident occurring in September of 1985 when she was seventeen.

In June 1988, the State retained Dr. Anna Salter, a clinical psychologist specializing in child sexual abuse, to testify as an expert witness on the issues of delayed reporting, family dynamics of sexual abuse, patterns of sexual abuse and effects of sexual abuse. At the time she was retained, the State advised her that trial was scheduled for late September 1988. After the State disclosed that it had retained Doctor Salter, the defendant took her deposition on July 28, 1988.

By early August, the parties were notified that trial was set for September 28. On August 10, the State wrote to Dr. Salter advising her of the trial date. Thereafter, the State telephoned her on September 13 and September 23, leaving messages each time but failing to reach her personally. Finally, on September 2fi, the State established telephone contact with Dr. Salter and learned that she would be in Wisconsin on the date of trial and would not be returning until October 3, 1988.

On September 27, the day before trial, the State motioned the trial court to declare Dr. Salter “unavailable” and admit her deposition testimony. Once a witness is found unavailable, her deposition may be used as substantive evidence. V.R.E. 804(b)(1); V.R.Cr.P. 15(e). The court granted the State’s motion over defendant’s objection that the witness was not unavailable under the rules of evidence and procedure and the admission of the deposition denied his right to confront the witness. An edited version of the deposition was read to the jury.

Defendant argues that the trial court erroneously declared Dr. Salter “unavailable” thereby depriving him of his constitutional rights to confront and cross-examine a witness whose testimony was offered against him. A witness is unavailable if she is “absent from the hearing and the proponent of [her] statement has been unable to procure [her] attendance ... by process or other reasonable means.” V.R.E. 804(a)(5); V.R.Cr.P. [41]*4115(g). The issue is whether the language of V.R.Cr.P. 15(g) and V.R.E. 804(a)(5), “other reasonable means,” requires the State to do more to secure the witness’s attendance than it did here.

It is important to emphasize that we are dealing -with a requirement imposed both by the applicable evidence rule and by the Confrontation Clause of the Sixth Amendment to the United States Constitution. The requirements are similar when a party seeks to admit the prior testimony of a witness in place of present testimony in a proceeding. See State v. Carroll, 147 Vt. 108, 111, 513 A.2d 1159, 1160 (1986) (hearsay rules and confrontation clause protect similar values). Thus, to meet confrontation requirements, the witness must be unavailable despite the State having made “a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 725 (1968), quoted in Carroll, 147 Vt. at 112, 513 A.2d at 1161.

The length to which the State must go in producing a witness is a “question of reasonableness.” Ohio v. Roberts, 448 U.S. 56, 74 (1980); see also United States v. Casamento, 887 F.2d 1141, 1169 (2d Cir. 1989). The State bears the burden of establishing the witness’s unavailability. Ohio v. Roberts, 448 U.S. at 74-75.

The State’s only efforts to secure Dr. Salter’s presence were an initial letter followed by several phone calls. The State failed to reach her until it was too late to use alternative measures to assure her attendance. It argues that the phone calls satisfied the mandate that the State use “other reasonable means.”

Because the State knew where its witness was, “rules governing unavailability . . . are not strictly applicable.” Carroll, 147 Vt. at 113, 513 A.2d at 1161-62. Furthermore, a witness who will be inconvenienced by appearing, Topping v. People, 793 P.2d 1168, 1171 (Colo. 1990), or proves evasive, United States v. Lynch, 499 F.2d 1011, 1024 (D.C. Cir. 1974), is not unavailable.

The State elected not to seek a continuance of a few days to accommodate Dr. Salter’s schedule or to invoke the Uniform Act to Secure the Attendance of Witnesses, 13 V.S.A. § 6646. The fact that the State limited its effort because it assumed that Dr. Salter would testify is not a valid excuse. The State’s effort [42] was not sufficiently diligent to satisfy the unavailability requirement. The trial court erred in admitting the deposition.

The State argues, however, that any error resulting from the admission of Dr. Salter’s deposition was harmless. Because of the constitutional violation, we must use the standard applicable to a constitutional error to determine whether the error was harmless. To avoid reversal, we must find that the error was harmless beyond a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). The standard applies in confrontation clause cases involving an expert witness. See Satterwhite v. Texas, 486 U.S. 249,258 (1988). Under this standard, an error cannot be harmless “[i]f there remains a possibility that the constitutionally-proscribed evidence impacted on the ultimate decisional process of the jury [and]... the beneficiary of the error cannot refute that possibility beyond qll reasonable doubt.” Brown v. Dugger, 831 F.2d 1547, 1554 (11th Cir. 1987); see also Chapman v. California, 386 U.S. 18, 24 (1967) (adopting language of Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963), that error is not harmless if “there is a reasonable possibility that the evidence complained of might have contributed to the conviction”). The State has the burden of demonstrating harmlessness. See Arizona v. Fulminante, — U.S. —, —, 111 S. Ct. 1246, 1257 (1991).

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State v. Lynds, 605 A.2d 501, 158 Vt. 37, 1991 Vt. LEXIS 235 (Vt. 1991).

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